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Rule of Law and Human Rights Concerns in Poland

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Rule of Law and Human Rights Concerns in Poland ANNEX: RULE OF LAW AND HUMAN RIGHTS CONCERNS IN POLAND Amnesty International, FIDH, the Open Society European Policy Institute and Reporters without Borders are calling on the European Commission to activate Article 7 TEU. It’s a call to hold Poland to account for its failure to respect rule of law and human rights and the other values referred to in Article 2 TEU. If activated, the procedure may result in Poland losing its voting rights in the European Council. The NGOs provided the Commission with evidence of continuous attempts to undermine the rule of law and restrict human rights, including freedom of expression and media freedom, freedom of assembly, the right to privacy and women’s sexual and reproductive rights. Although these attempts have been met with a strong response by civil society, the government’s reaction to protests further confirms its resolve to silence critical voices and hold a grip on democratic counter-powers. This document summarizes the main concerns in relation to the rule of law and human rights in Poland: the constitutional crisis and the independence of judiciary, freedom of assembly, attacks on civil society, freedom of expression and media and counter-terrorism and surveillance. This document is not an exhaustive list of our organisations' concerns regarding respect for the rule of law and human rights in Poland. CONSTITUTIONAL CRISIS AND THE INDEPENDENCE OF JUDICIARY Since November 2015, the Polish government has undertaken significant legal reforms, in particular concerning the Constitutional Tribunal, which has drawn the attention of several regional bodies, as well as the European Commission. The Constitutional Tribunal plays a vital role in protecting human rights and freedoms in Poland, through adjudicating on laws’ conformity with constitutional rights, many of which are part of international human rights law and are protected as fundamental rights within the legal system of the European Union. The reforms have seriously undermined the Tribunal’s ability to effectively carry out its mandate, and have created legal uncertainty and an environment where the human rights are structurally at risk. The speed of the reforms, with proceedings sometimes taking place at night, and the lack of consultation with civil society have been widely criticised. On 27 July 2016, the European Commission (EC) issued a recommendation under the Rule of Law Framework in which it found that there was a “systemic threat to the rule of law in Poland”. The EC called on the Polish authorities to address this threat as a matter of urgency and to follow a set of recommendations that would ensure the effectiveness and legitimacy of the Constitutional Tribunal in particular and the independence of the judiciary in general. Amnesty International, FIDH, Open Society Initiative and Reporters without Borders consider that these recommendations have not been implemented by the Polish government to date. In December 2016 the parliament adopted a package of new laws on the Constitutional Tribunal, including a new procedure for the election of the President of the Tribunal authorizing the President of Poland to appoint an “Acting President”. The Polish Constitution only recognizes the President and Deputy President of the Constitutional Tribunal and thus does not provide a basis for this position. On 20 December 2016, the President of Poland appointed Julia Przyłębska as an “Acting President”. A day later, Julia Przyłębska in her capacity of “Acting President” called the General Assembly of Judges. Two candidates, including Julia Przyłębska, were elected by the General Assembly for the Tribunal President post, the legality of which was questioned.1 On 21 December 2016, the President of Poland chose to appoint Julia Przyłębska as the President of the Constitutional Tribunal. On the same day, the EC discussed the rule of law in Poland and issued a complementary Recommendation, calling on the authorities to ensure no appointment of the new President of the Constitutional Tribunal takes place as long as the contentious issues around its composition are clarified and until its judgments on the constitutionality of the amendments of the Law on Constitutional Tribunal adopted in March and August 2016 have been published and implemented.2 The Polish President ignored this recommendation when appointing Julia Przyłębska. In January 2017, the President of the Venice Commission stepped up the criticism of the government’s interference into the independence of the judiciary stating that “practical steps are now taken with the apparent aim to ensure that the Tribunal act in accordance with the will of the current political majority.”3 Apart from infringing the independence of the Constitutional Tribunal, the government has embarked on a trajectory of interference with the independence of the judiciary in general. Under the new Law on Prosecution of 28 January 2016, the functions of Prosecutor General and Minister of Justice have been merged.4 The Prosecutor General/Minister of Justice has now the power “to intervene at each stage of legal proceedings led by any prosecutor by issuing instructions, guidelines and orders on specific measures relating to individual cases. [He] can also revoke or modify decisions taken by prosecutors.”5 The Prosecutor General’s powers have also been broadened and include the authority to make information about selected cases and pre-trial proceedings available to public officials and the media, if this is considered to be “in the public interest”.6 These reforms can have significant implications for the independence of the justice system. The authorities are now drafting an amended law on the Judiciary, which according to the media reports, would allow the minister of justice to dismiss presidents of county and appeal courts before their terms come to an end. The minister would also have the power to appoint new court presidents to replace them. 1 Helsinki Foundation for Human Rights, statement issued on 5 January 2017. See: http://www.hfhr.pl/en/chief-justice-of-polands-constitutional-court-elected-at-illegal-session/ 2 http://europa.eu/rapid/press-release_IP-16-4476_en.htm 3 Poland: Statement by the President of the Venice Commission, 16 January 2017. See: http://www.venice.coe.int/webforms/events/?id=2352 4 Law on Prosecution of 28 January 2016 (Ustawa z dnia 28 stycznia 2016 r. Prawo o prokuraturze) Journal of Laws 2016 item 177. 5 See the Report of the Commissioner for Human Rights of the Council of Europe, 15 June 2017: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000 16806db712 6 Law on Prosecution of 28 January 2016, Articles 12§1 and 12§2. Currently the appointment and dismissal of judges is made on the recommendation by the National Council of the Judiciary but the current draft amendment removes this safeguard.7 In May 2016, the Minister of Justice presented a proposal to amend the Law on the National Council of the Judiciary which may have significant implications for the right to a fair trial.8 If enacted, the Law would end the terms of all current Council members before their terms in office are due to expire and require the Council to nominate two candidates for any judicial office in the future (except for judges of the Constitutional Tribunal). Under the amendment, the members of the National Council of the Judiciary, constitutional organ safeguarding independence of courts and judges, should be elected by the parliament. The amendment raised also concerns over constitutionality: under the Constitution, the Council comprises of the President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and a person appointed by the President of Poland. The remaining 21 members should be selected from among the judges of the Supreme Court, the general courts, the administrative courts and the military courts. According to the Constitution, only four Council members are members of by the lower chamber of the parliament (Sejm) and two are members of the Senate. In June 2016, the President of Poland refused to appoint nine judges promoted to higher-level courts and a judge candidate who expected to receive his first appointment.9 On 29 December 2016, the Provincial Administrative Court in Warsaw dismissed the complaints of three of the judges against the President’s refusal.10 The Helsinki Foundation for Human Rights appealed the decision to the Supreme Administrative Court. FREEDOM OF ASSEMBLY The government’s actions in relation to the Constitutional Tribunal, independence of judiciary, access to sexual and reproductive rights, access of media to the parliament and respect for human rights in general provoked a strong response of the public. Warsaw as a well as other cities around the country experienced large-scale demonstrations when thousands of people protested against government and its policies in February, March, May, June, October and December 2016. The government responded with a set of measures that raise concerns over infringement of the right to freedom of assembly. In January 2017, the Warsaw police opened a call on public to identify demonstrators on the images from protests on 16 and 17 December 2016.11 During the events, demonstrators 7 Gazeta Wyborcza, 11 February 2017, See in Polish, http://wyborcza.pl/7,75398,21359505,ziobro-nowelizuje-sady-chce-odwolac-sedziow-nastepnych- mianuje.html 8 Amnesty International. Poland: Submission to the UN Human Rights Committee. 27 October 2016. https://www.amnesty.org/en/documents/eur37/4849/2016/en/ 9 President’s decision no. 1130.9.2016 of 22 June 2016, Official Journal of 21 July 2016 item 696. 10 Helsinki Foundation for Human Rights, statement issued on 5 January 2017: http://www.hfhr.pl/en/first-instance-administrative-court-dismisses-complaints-of-judges-denied- appointments-hfhr-to-file-a-complaint-in-cassation/ 11 http://www.policja.waw.pl/pl/dzialania-policji/aktualnosci/41147,Kto-rozpoznaje-te-osoby.html blocked the Polish parliament in a protest against the new regulation restring the access of media to the parliament (see: Freedom of expression and the media).
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